Reputational Limbo

If you have been arrested but not charged, does the public have the right to know?

We’re used to reading about high-profile individuals who’ve been arrested or interviewed under police caution. The person’s name is leaked to the press, and the media is all too often ready to publish a sensationalistic splash. Take the raid on Sir Cliff Richard’s home in August last year: it wasn’t merely leaked but was also broadcast on national television. Mark Pritchard MP, himself arrested in December 2014, called for the law to be changed after his arrest was widely reported, only for the case to be dropped a month later.

Those who are named in the press before they are even charged suffer serious and sometimes irreparable reputational harm. They have no right to anonymity – and this problem isn’t just confined to celebrities.

The law of libel may help repair the damage, as it did in the case of Christopher Jefferies, so egregiously treated by the police and press in the wake of the disappearance of Joanna Yeates. Mr Jefferies obtained substantial damages for reports that went well beyond mere details of his name and the fact of the arrest. The police apologised to him for failing to make it clear he was no longer a suspect. However, criminal cases can drag on, with those arrested released on bail and left in reputational limbo as they wait for months to see if charges will be brought. Libel claims have to be brought within a year after first publication so steps need to be taken to preserve the right to sue if a claim for libel is contemplated.

But should those arrested be named in the first place?

In theory, the names of people arrested should only be released by the police if there is a clear policing reason for doing so, for example to encourage victims to come forward. Police protocol echoes the views of Lord Justice Leveson, whose Report in 2012 was unequivocal: “save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press nor the public.” In May 2013 the Home Secretary Teresa May wrote to the College of Policing stating “… there should be a right to anonymity at arrest, but … there will be circumstances in which the public interest means that an arrested suspect should be named”.

The College of Policing’s guidelines expressly recognise this, making it clear that an arrested person’s details should only be released to the press in certain circumstances. Unfortunately, the information is leaked to the press all too often, in clear breach of police rules. Press protocol, under the aegis of the brave new Independent Press Standards Organisation (IPSO), is playing catch up: despite the clear steer in the Leveson Report, its code provides a degree of protection only to an arrested person’s relatives or friends, and children who witness or are victims of crime.

An arrested person, or someone brought in for questioning, may be able to use the law to stop the press reporting their name, or to get compensation from the police or the press for the consequences of harmful reporting. The law of privacy (misuse of private information) may help; recent cases confirm that an arrest or the facts surrounding the arrest may, depending on the facts, amount to private information and there is no absolute right of the press to publish the fact of an arrest. The media argue that the fact of an arrest is a matter of public interest and the right to report it is an important part of free speech and open justice. The law has to balance these rights against the rights of individuals.

The emphasis, at present, remains on remedies after the event. However, bearing in mind increased public calls for the law to be more robust, it may well be that an arrested person, or someone about to be arrested, can take action to stop media coverage of an arrest, or to stop the police releasing the information. The public does not necessarily have a right to know.

Carter-Ruck is authorised and regulated by the Solicitors Regulation Authority (SRA Number 44769). The SRA rules can be found on the SRA website
The Legal Ombudsman is an independent organisation set up to help resolve disputes concerning legal services.Further information about the Legal Ombudsman can be found at its website: www.legalombudsman.org.uk